In recent years human rights has become a phrase in daily use. It is employed to condemn the killings in Tiananmen Square, the exploitation of child labor in India, and ethnic cleansing in Bosnia. The present article will address the distinctly less dramatic but nonetheless real challenges implicit in achieving equal opportunity for all groups in Canada, a country which is generally viewed as having a well-developed system of human rights protection. It will outline the human rights framework that exists in the country today, with particular reference to the work of the Canadian Human Rights Commission. It will also touch on the currently controversial concept of affirmative action (or employment equity, as it is known in Canada) which is viewed in some quarters as a necessary extension of human rights principles, in others as a misguided effort at social engineering that undermines the very idea of equality.

I. The Commission Model

In October 1991 a group of national human rights commissions from around the world, meeting in Paris, identified certain tenets that they saw as [End Page 547] essential to their effective functioning. The Paris Principles, 1 which were drawn up at the session, underlined the need for such agencies to possess as broad a mandate as possible and to be underpinned by legislation, preferably of a constitutional nature. 2 Presumably, the objective was to ensure that a human rights commission had staying power and could not be abolished at the whim of a government.

A. Staying Power of a Commission

However, the enactment of a law establishing an agency is in itself no guarantee that the agency will survive. Even in Canada, which tends to view itself as something of a paragon in the field of human rights, there can be sudden detours on the road to equality. For example, in 1983 a newly-elected government in the Province of British Columbia repealed the province's Human Rights Code, dissolving the Human Rights Commission and terminating the appointments of all commission members. 3 In late 1995 the Alberta Human Rights Commission faced an uncertain future from a provincial government imbued with a mission to cut bureaucracy and an apparent inclination to end what some of its supporters viewed as special [End Page 548] treatment for certain groups. 4 In 1995 the Conservative Party in Ontario, the country's largest province, came to office on a platform that included a commitment to eliminate Ontario's Employment Equity Commission, a newly established agency with a mandate to advance the work force representation of women, visible minorities, Aboriginal Canadians, and the disabled. 5 Within a week of taking office, the new Premier fired the head of the agency and confirmed his government's intention to repeal the law which had given birth to the agency. 6

B. Independence

If survival is the first and most obvious need for a commission, independence is certainly a close second. An agency which is viewed as a captive of its government will have little credibility either domestically or internationally. How can this independence be guaranteed? A number of factors come into play.

First is the matter of a commission's accountability: a reporting line to Parliament or a legislature rather than to an individual minister will usually [End Page 549] provide some protection against hostile political winds. The appointment and tenure of commissioners can also speak to the degree of independence enjoyed by an agency. Naming a commissioner for a fixed term of five, seven, or ten years provides a measure of security to a commissioner who contemplates taking decisions that are openly critical of his government or inimical to the interests of powerful groups within the country. The adequacy of funding 7 also bears upon a commission's freedom of action; an agency's crusading ardor can sometimes be cooled by trimming its budget, thereby sending a clear signal that the agency should contemplate the consequences of its acts.

Commissions are commonly empowered to refer complaints of discrimination for a hearing before a tribunal or board of inquiry. If this authority rests solely with the agency (as is the case, for example, with the Canadian Human Rights Commission), it denotes a measure of independence that is arguably absent if the concurrence of a government minister (who may or may not accede to the request) is needed before such a hearing can be convoked. 8

C. Monitoring Ability

The Paris Principles envisage each national institution playing a monitoring role with respect to its own country's human rights performance. They are to be free to issue "opinions, recommendations, proposals and reports on any matters concerning the protection and promotion of human rights." 9 These organizations should also be in a position to comment on the appropriateness of current and proposed laws and practices, and to make recommendations "in order to ensure that these provisions conform to the fundamental [End Page 550] principles of human rights." 10 National agencies are expected to draw the attention of their governments to situations of domestic human rights violations, "[t]o contribute to the [national] reports which States . . . submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations, and where necessary, to express an opinion on the subject, with due respect for their independence." 11

All this might seem to make for a heady brew for a human rights commission. In practice, the likelihood of an agency publicly critiquing its government's performance will be lessened by a couple of factors. First, in shaping a commission's mandate, a government is unlikely to afford the commission free reign to hold it accountable in the international arena. To the extent that such freedom is afforded, the probability of the country in question being seriously derelict in its human rights scorecard will generally be low. In addition, the agency itself may prefer to make its points privately, realizing that a public dispute with its government will not necessarily produce the desired changes to laws or policies. 12

II. The Canadian Human Rights Commission

Both the Canadian Charter of Rights and Freedoms 13 (which has formed part of Canada's constitution since 1982) and human rights codes (which are now in force in each of the ten provinces and at the federal level) play a part in advancing equal opportunity in Canada. Section 15(1) of the Charter 14 guarantees equality before the law and has already generated a hefty body of jurisprudence. 15 In addition, it has undoubtedly sensitized Canadians to [End Page 551] the sometimes uneven impact that laws and policies can have. The Charter, however, applies only to federal and provincial governments, not to the private sector where much discrimination continues to occur. 16 For this reason and others, including the costs of Charter litigation, federal and provincial human rights laws continue to be of importance in combatting discrimination in such key areas as employment, housing, education, and commerce.

A. Purpose

The stated purpose of the Canadian Human Rights Act (CHRA) is to give effect to the principle of equal opportunity. 17 The Canadian Human Rights Commission (CHRC), the agency established to work towards this objective, is given a broad mandate by the Act. CHRC is authorized to: develop public information programs; sponsor research; review and comment on regulations (which it believes are inconsistent with the principle of equal opportunity); and endeavor by persuasion, publicity, or any other means it considers appropriate to discourage and reduce discriminatory practices. 18 The CHRC receives its funding from the federal Treasury but acts independently of the government and indeed is frequently a party to litigation brought against the government. CHRC is required to report to Parliament annually on its activities and on other human rights matters it considers appropriate. 19 These reports are far-ranging in their coverage and are often critical of government policies or actions.

Like its provincial counterparts, the CHRC's major activity is the investigation of complaints filed by individuals who believe they are the victims of discrimination on one or more of the ten prohibited grounds listed in section 3 of the Act. 20 Once a complaint has been filed, a staff investigator will interview the complainant and any other witnesses, either in person or [End Page 552] by telephone, and prepare a report. 21 This will analyze the evidence obtained and include an initial staff conclusion as to whether or not discrimination has occurred. 22 The report is disclosed to the complainant and respondent, each of whom is given the opportunity to make a written submission. 23 The report, together with any submissions received, is then placed before the Commission for decision. 24 The latter may decide to dismiss the complaint, or send it to conciliation; this is an informal procedure where an effort is made to find a basis for a settlement between the parties. 25 At this stage there is no hearing: the Commission bases its decision upon the written material before it. 26 If conciliation is unsuccessful or if the Commission believes it would not be appropriate--for example, if the infraction is particularly serious or if a respondent has indicated an unwillingness to participate--it may refer the complaint for a hearing before a human rights tribunal. 27 Tribunals are empowered to summon witnesses and compel them to give evidence. 28 Their decisions, which are binding, can include various forms of redress: an apology, the award of damages for lost earnings or for hurt feelings, a direction to offer employment to someone who has been denied a job, and changes to, or the elimination of, unacceptable practices. 29 Tribunal decisions can be appealed to the Federal Court of Canada by way of an application for judicial review. 30

Race and sex are the grounds traditionally associated with antidiscrimination regimes. In Canada, however, the number of groups entitled to protection of the law has expanded during the past two decades. The lengthy list of grounds enumerated in the CHRA is not very different from those contained in most provincial human rights codes. Disability now constitutes the single largest category of complaints followed by sex, race, [End Page 553] and age. 31 Family and marital status cases are also numerically significant, as are complaints involving discrimination on the basis of sexual orientation. 32

Canadian jurisprudence has made it clear for some time that discrimination can arise from either intentional or unintentional acts. 33 Thus, the use of standards for entry into a job or profession which on their face are neutral but that serve as a barrier to certain groups can be found to be discriminatory. For example, minimum height requirements for flight attendants and the use of strength tests to screen applicants seeking employment as firefighters will tend to prevent women or members of some racial groups from gaining employment. Similarly, a bank whose branch office is in a building where steps to the door prevent persons in wheelchairs from gaining access may find itself defending a complaint of discrimination on the ground of disability.

The law seeks to maintain an equilibrium between the aggrieved individual and the employer or service-provider through the concepts of bona fide occupational requirement (BFOR) or bona fide justification (BFJ), which can provide a defense for actions that might otherwise run afoul of antidiscrimination laws. 34 So, if an airline can establish that certain visual acuity standards are necessary in recruiting airline pilots, this will amount to a BFOR notwithstanding that it may have the effect of denying someone with poor eyesight the right to a chosen profession. Similarly, while an employer or service-provider must take steps to reasonably accommodate the needs of disabled persons, it is not required to incur undue costs to fix [End Page 554] the problem. 35 So, while one may expect a bank to install a ramp for the convenience of disabled customers, it would be asking too much to require the army to customize its tanks in order to enable a short-statured soldier to pursue a career in the infantry. 36

B. Discriminatory Actions

There are three major categories of activity that can lead to the filing of a complaint under the CHRA: discrimination in the provision of services to the public, 37 discrimination in employment, 38 and the application by an employer or labor union of a discriminatory policy. 39 These will be briefly examined, in order.

1. Provision of Services

Within the federal sphere 40 anyone who believes he or she has suffered discrimination on one or more of the enumerated grounds in the provision of services customarily available to the public can file a complaint under section 5 of the CHRA. 41 The notion of public services has been given a [End Page 555] broad interpretation; it includes the provision of benefits under government programs targeted at defined groups within the larger population (for example, unemployment insurance or pension benefits). It also covers government activities in such areas as taxation, customs and excise, and immigration. 42 In the nongovernmental sphere, section 5 complaints can arise whenever someone is discriminated against as a customer or when seeking a particular service. Impermissible activities include requiring a female client to obtain her husband's signature as guarantor of a loan (in circumstances where the client's credit worthiness would not otherwise necessitate such a step), and an airline's refusal to transport someone who is confined to a wheelchair.

2. Discrimination in Employment

Section 7 of the Act states that it is a discriminatory practice to refuse to employ or discriminate against any employee in the course of employment. 43 The individual must, of course, be able to show a link between the adverse treatment and one of the enumerated grounds. Sometimes this will be apparent: an employer tells a female applicant that he intends to hire a man for the job, or a 60-year-old applicant is denied a job interview because the company is looking for someone younger. More often, and particularly when the complaint involves race or national origin, the evidence will not be so clear-cut.

Much discrimination is covert and an employer will commonly point to the person's lack of qualifications, poor references, or abysmal interview as justifying a refusal to hire. For an individual who is already employed but who has been denied promotion for a number of years, the circumstances will often be murky. There may be a series of good performance evaluations together with some evidence that colleagues with less experience, but of a different race or gender, have moved up the corporate ladder ahead of her. The employer's response will almost certainly be that the complainant was [End Page 556] no more than adequate in her job and that any suggestions in earlier performance reviews that she was ready for promotion were intended to motivate the employee and not to be taken literally. These are often difficult cases to resolve, although they are sometimes sent forward to conciliation in the hope that the parties may be able to work out a solution with help from the Commission's conciliator.

3. Discriminatory Policies

The third major category involves policy complaints brought under section 10 of the Act. 44 This provision prohibits a discriminatory policy or practice that deprives or tends to deprive an individual or class of individuals of any employment opportunities. 45 Section 10 will often be cited in combination with section 7 in cases where it is not immediately clear whether the alleged discrimination arose from acts directed at the complainant or from a more general policy of which he or she happened to be the victim. This can often arise, for example, in complaints involving disability. Thus, a person who cannot get work as a railway track laborer because he suffers from diabetes and is thereby seen to pose a risk to safety may base a complaint upon sections 7 and 10 if the railway which refused to hire him has in so doing relied upon an employment policy that prohibits the hiring of diabetics for safety-sensitive positions. Similarly, a would-be recruit who sees perfectly well with contact lenses but whose uncorrected vision does not meet the standards for admission into a police force might well invoke sections 7 and 10, in seeking both individual redress (usually damages or a job offer) under the former and a change to what the complainant sees as an unreasonable practice via the section 10 complaint.

Canadian courts have interpreted human rights codes liberally, and the Supreme Court of Canada has declared that human rights laws enjoy a quasi-constitutional status which gives them primacy over other legislation. 46 In this context it is perhaps not surprising that section 10 of the CHRA [End Page 557] has become a well trodden path for those seeking to bring about change to policies of the federal government or major employers. Thus, complaints under the Act have sought to bring about changes to elements of the federal Unemployment Insurance Program that treated women less favorably than men, 47 military policies on mandatory retirement, 48 and provisions in the Citizenship Act which differentiated between natural born and adoptive children. 49 Sometimes a complaint under the CHRA is chosen as a less costly alternative to a challenge under section 15 of the Charter of Rights, and on major issues it is not uncommon to find both lines of attack being pursued. A notable example of the latter is the multipronged approach employed by gay and lesbian couples in efforts to obtain employment related benefits, which until recently were available only to those who were married or in a heterosexual common law relationship. 50

III. Complaints and Their Limitations

The theory behind the creation of a human rights commission is that through the use of relatively informal procedures and a gradual accretion of expertise it will ensure the availability of a prompt and inexpensive remedy for victims of discrimination. In particular, commissions are expected to be more accessible than the courts, whose formalism and cost can deter all but the most intrepid (or affluent) from initiating proceedings. Unfortunately, some tarnish has appeared on the human rights model in recent years.

A high dismissal rate for complaints, particularly those involving race, has prompted criticism of commissions as being insufficiently sensitive to the more insidious forms of discrimination. At first sight the burden of proof placed upon a complainant would not appear unduly onerous: he or she has to satisfy the civil law "balance of probabilities" test rather than the stricter criminal standard of proof beyond a reasonable doubt. In addition, Canadian courts have affirmed that race (or any other prohibited ground) [End Page 558] need be only one among several elements contributing to an individual's difficulties in order for a complaint to succeed.

Nonetheless, complainants will often be at a disadvantage in seeking to show that discrimination in fact occurred. Their recollection of what happened will frequently be countered by an employer that is able to produce written records supporting its side of the story. Government or corporate officials are also, in general, more at ease with the investigative process than is a complainant, for whom this might well be an initiation into the mysteries of the legal system. The former are consequently better able to present a convincing version (correct or otherwise) of the facts in question. In addition, witnesses to racial slights may not exist or may be reluctant to support the complainant's version of events if by so doing they are seen as criticizing an employer on whom they are dependent for future work or advancement. All of this can be a frustrating experience for complainants and can contribute to an impression that a human rights commission is unable or unwilling to come to their assistance.

An additional hurdle confronting those who might wish to avail themselves of human rights machinery arises from the delays which have become endemic for many commissions in Canada. Growing workloads, coupled with financing that has failed to keep pace with them, contribute to backlogs in complaints investigation. Perhaps ironically, expanding notions of due process have also contributed to the general problem.

A. Procedural Due Process

It is axiomatic that a party has the right to know the nature of the case to be answered. Accordingly, the CHRC will invariably disclose to the complainant and respondent the investigation report that incorporates the fact-finding and analysis upon which the Commission will rely when it makes its decision. Any written submissions made by either or both of the parties in response to the report will similarly be in front of commissioners when they decide.

The Federal Court of Canada has recently said that this may not be sufficient. In a case brought against the Canadian Penitentiary Services, now Correctional Services Canada, a complaint of job discrimination based on sex and disability was dismissed by the CHRC. 51 The complainant proceeded to challenge this decision, arguing that the Commission had acted contrary to the rules of procedural fairness because she was not afforded the [End Page 559] opportunity to see and make additional comments on the submission from Penitentiary Services before the Commission decided the fate of her case. 52 The Court agreed with her, ruling that such submissions should be disclosed to the other party when, as here, they contained new evidence or challenges to a party's credibility. 53

Not infrequently, dissatisfied parties to a complaint seek to delve behind the investigation report itself and obtain witness statements or notes compiled by an investigator, notwithstanding that these materials do not form part of the record examined by the commissioners when arriving at their decision. To date the courts have declined to support these fishing expeditions, 54 but the growing propensity of complainants and respondents to apply for judicial review if they are not happy with the direction a complaint is taking has undoubtedly contributed to some nervousness and additional caution on the part of commissions, thereby further slowing the pace of resolving complaints. Fact-finding also becomes more difficult as witnesses move away and recollections fade. In turn, settlements are more difficult to achieve as parties become entrenched in their positions with the passage of time.

B. Substantive Rights

In some instances the credibility of human rights commissions has also been undermined by their willingness to deal with issues that are portrayed, rightly or wrongly, as trivial. The CHRC was taken to task in the media a few years ago for pursuing a human rights complaint involving the firing of an individual for being drunk at work. 55 In another contentious case the Ontario Human Rights Commission was criticized for accepting a complaint brought by two women in Toronto alleging that a corner store displaying copies of Playboy and similar magazines was guilty thereby of harassment towards female customers entering the store. 56 A second case from the Ontario Commission that generated a negative media response involved a complaint brought against the mayor of the city of Hamilton by an organization whose request that the city proclaim a Gay Pride Day was [End Page 560] rejected. 57 The first of these Ontario cases remains unresolved while the second resulted in a provincial board of inquiry which upheld the complaint and ordered the mayor to pay $5,000 in damages to the complainant. 58

C. The Dilemma

The examples cited point to the dilemma facing commissions which must endeavor to retain the support of society at large while trying to expand the frontiers of human rights protection. In each case, the issues were more complex than press accounts suggested. In the first example, press reports did not mention that the CHRA defines disability to include dependence on alcohol or a drug 59 and that the complainant had made serious efforts to overcome his longterm alcoholism. 60 The Gay Pride complaint had been the subject of a thoughtful decision by a provincial board of inquiry, unmentioned by the media, which concluded that the city's practice of issuing a proclamation in favor of just about any group that requested it amounted to a type of public service. The denial of the same privilege to a gay applicant without any attempt at justifying the differential treatment was discriminatory under the Ontario Human Rights Code. 61

IV. Beyond Equal Treatment

As noted earlier, Canadian law recognizes that equal opportunity may call for something more than equal treatment under the law, especially if the latter results in adverse consequences for particular categories of people. The concept of reasonable accommodation, now well established in the country's human rights jurisprudence, requires employers to make adjustments either to the workplace or their employment practices in order to accommodate an individual's needs. In the leading case, Alberta Human Rights Commission v. Central Alberta Dairy Pool, 62 the Supreme Court of Canada affirmed that in order to meet this duty the employer may have to accept some inconvenience, expense, or operational disruption. [End Page 561]

Dairy Pool involved a complaint made to the Alberta Human Rights Commission by an individual who had asked for a change in his shifts so that he would not have to work on days which conflicted with his Sabbath. 63 The Dairy Pool refused to accede to his request, and matters came to a head when he was told he had to work one Easter Monday. 64 He was fired when he failed to show up for work on the day in question. 65 A provincial board of inquiry found for the complainant, on the basis that the employer had a duty to accommodate him unless it could establish that doing so would involve undue hardship, a burden it had not discharged. 66 The case eventually reached the Supreme Court of Canada. 67

The Supreme Court departed from its earlier decision in Bhinder v. C.N.R., 68 in which an orthodox Sikh had unsuccessfully challenged an employer's rule requiring the wearing of a hard hat on the work site. In Bhinder, the Court found this to be a bona fide occupational requirement and declined to impose a duty to accommodate the complainant, whose religion forbade him to wear any head covering other than a turban. 69 In Dairy Pool, by contrast, Justice Bertha Wilson, writing an opinion concurred in by three of her colleagues, affirmed that employers were under a duty to accommodate short of undue hardship. 70 Justice Wilson enumerated factors that are relevant in deciding whether such hardship has been established:

financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. 71

Justice Wilson observed that the list was not intended to be exhaustive, and in endorsing the finding of the original board of inquiry noted that, "[i]f the employer could cope with an employee's being sick or away on vacation on Mondays, it could surely accommodate a similarly isolated absence of an employee due to religious obligation." 72[End Page 562]

A. Affirmative Action

Both the Charter of Rights and Freedoms 73 and the Canadian Human Rights Act 74 envisage the implementation of special programs aimed at assisting historically disadvantaged groups. Neither law uses the words affirmative action, a term originally eschewed in Canada. Regardless of terminology, however, courts and, more recently, legislatures have recognized that if certain chronically underprivileged groups are to be provided with a genuine opportunity to advance economically, broader remedies are needed than those traditionally available through the filing of an individual complaint.

In the most notable judicial pronouncement on this subject, the Supreme Court of Canada in Action Travail des Femmes v. Canadian National Railway75 upheld the order of a human rights tribunal directing the railway to implement a special program for the recruitment of women into blue-collar jobs. The tribunal found that the complainants were the victims of sexual discrimination resulting from longstanding recruitment practices at CNR which had placed undue reliance on strength tests and other physical requirements. 76 The tribunal ordered the company to hire women for one in every four blue-collar jobs until such time as their representation levels matched their availability in the workforce. 77 It also ordered CNR to report to the CHRC four times a year on its progress. 78 In his reasons for decision, Chief Justice Dickson observed that:

When confronted with such a case of "systemic discrimination," it may be that the type of order issued by the tribunal is the only means by which the purposes of the Canadian Human Rights Act can be met. In any program of employment [End Page 563] equity, there simply cannot be a radical dissociation of "remedy" and "prevention." Indeed there is no prevention without some form of remedy. 79

While Action Travail des Femmes was wending its way through the courts, Parliament was examining the findings of a Royal Commission on Employment chaired by Judge Rosalie Abella. 80 The Abella Report concluded that existing antidiscriminatory legislation and voluntary affirmative action measures had not proven successful at removing the systemic barriers to employment which confronted women, Aboriginal persons, visible minorities, and the disabled. 81 The Report, which had a major impact on the thinking of government and community groups, argued that legislation was needed which would place a duty on employers to identify and eliminate discriminatory barriers in the workplace. 82

B. Employment Equity Act

Largely as a response to Abella, Parliament enacted the 1986 Employment Equity Act. 83 The legislation, the first of its kind in Canada, required all federally-regulated employers with more than 100 employees to file an annual report on the representation levels in their workforce of each of the so-called designated groups--women, Aboriginal peoples, visible minorities, and the disabled--and their distribution by occupational category and salary range. 84 A similar breakdown was also to be provided on the number of employees hired, promoted, and terminated. 85 In addition, employers were required to prepare annual plans indicating how they intended to achieve employment equity. 86

With the exception of a potential fine of up to $50,000 87 for failing to file an annual report, the Employment Equity Act included no sanctions. However, as a partial response to criticism of the legislation's weakness, a provision was inserted prior to its passage directing that copies of the annual reports from employers were to be made available to the Canadian Human Rights Commission. 88 Ministerial statements at the time suggested that the [End Page 564] Commission would thereby be in a position to monitor progress under the Act, although it was given no additional powers to do this.

After the coming into force of the 1986 Act, the CHRC followed one of two approaches with employers. First, it proceeded to investigate third party complaints filed under section 10 of the Canadian Human Rights Act which cited low levels of designated group representation as prima facie evidence of discrimination. Notable in this regard were two series of complaints filed by an association of Aboriginal Canadians in Manitoba and by an organization representing disabled persons in Toronto. 89

Secondly, certain employers whose statistics showed a very low rate of representation of one or more of the designated groups were invited by the Commission to enter into a joint review of their employment systems and practices. The reviews were intended to lead to an agreement between the Commission and employer on an employment equity plan. This was to include hiring goals that would, over a defined period of time, raise the overall levels of representation to reflect workforce availability. 90

There was some initial skepticism among employers who were asked to agree to such reviews, but the initiative has had a measure of success. This is most notable with Canada's major banks, who have embraced employment equity with considerable enthusiasm. The joint review exercise has, however, presented difficulties for the CHRC which, as noted, was given no new authority under the 1986 law. In particular it had to rely upon the express or implied threat of compliance action under the Canadian Human Rights Act--that is, the laying of a complaint alleging discrimination--in order to obtain cooperation from employers.

Thus, the 1986 Employment Equity Act was not generally viewed as a success. Initial opposition from employers subsided into a somewhat grudging acceptance, tinged with continuing disquiet at the idea of any outside agency having access to details concerning their internal management practices. For their part, the designated groups viewed the legislation as toothless and ineffectual. They pointed in particular to the limited advances made by the intended beneficiaries of the law, especially disabled persons and Aboriginal Canadians, since its coming into force. In 1992, after holding public hearings on the 1986 Act, a Special Committee of [End Page 565] Parliament issued a critical report which concluded that changes were necessary if the legislation was to become an effective tool. 91 The Committee noted that confusion persisted over responsibility for the law's enforcement and called for a number of specific amendments, including an extension of the law's coverage to include the federal public service. 92

The liberal government that came to power in Ottawa in late 1993 had committed to strengthening employment equity if elected. In late 1994 it introduced a comprehensive series of amendments to the Act which were passed by Parliament in December 1995 and came into force during 1996. 93 The new Employment Equity Act will extend to the private and public sectors. It will empower the CHRC to undertake compliance audits of employers and where necessary to direct an employer to establish short-term hiring goals. 94 Consistent with the affirmative action model, the law will not be concerned with issues of past culpability but rather with achieving structural change in companies or government agencies whose workforce profile departs markedly from what might be expected when the availability of designated group members is taken into account. 95

V. A Glance Back and a Look Ahead

While the demarcation lines blur, one can see three stages in the evolution of human rights protection in Canada. In the first period, which lasted until the Second World War, few, if any, constraints were in place against the differential treatment of groups within the larger society. For many years Canada's immigration and citizenship laws expressly favored those whose national origins were British or Western European, and in the early twentieth century, overtly anti-Chinese sentiment manifested itself in laws enacted both federally and provincially. Women, Aboriginal Canadians, and racial minorities also felt the sting of discrimination.

In Canada as elsewhere, a shift occurred after the War, as governments and courts began to react against the more blatant forms of discrimination. In one notable 1945 case, an Ontario court struck down a covenant that sought to prevent the disposition of certain land to Jews, "or to persons of [End Page 566] objectionable nationality." 96 In 1947 the federal government repealed the remnants of the openly anti-Chinese features that had marked Canadian immigration law for generations, 97 and in the early 1960s it removed the preference accorded to immigrants from European countries. 98 In the 1940s and 1950s, provinces began enacting fair employment practices and fair accommodation laws, and began providing for the investigation and conciliation of complaints. 99 The initial focus was on race as the unacceptable face of discrimination, although some protection was subsequently extended to women. Until the 1960s, however, coverage of antidiscrimination laws remained spotty and the level of protection varied from province to province.

The 1960s and 1970s was a period of growth and consolidation that saw the emergence of full-fledged human rights commissions across the country. Agencies were established both federally and in the provinces, and a significant expansion occurred in the number of groups entitled to the protection of the law. The disabled were soon included in human rights codes, and age, family or marital status and, in most but not all jurisdictions, sexual orientation, were also added as prohibited grounds of discrimination. Procedures were put in place in all provinces and at the federal level to ensure that aggrieved individuals would have their complaints investigated and, where necessary, subjected to a full hearing without the need to turn to the courts. This stage in the evolution of human rights protection has ensured the availability of an accessible forum for victims of the more manifest forms of discrimination, and, particularly through the work of human rights commissions and media coverage of some notable cases, has highlighted the damaging consequences of racism and sexism.

Today Canada is in a period of sometimes uneasy transition as attempts are made to move beyond the individual and his or her difficulties in an effort to come to grips with what has come to be known as systemic discrimination. Here the situations the law confronts are not aberrational in the sense of being a departure from the norm, but instead are continuing features of everyday life. The focus is not on the businessman who refuses jobs to people because he does not like their color or ethnic origin. Nor is it on the restauranteur who sexually harasses his waitresses. Instead, the [End Page 567] challenges are those posed by such realities as women in full-time employment in Canada earning on average only 72 percent of the wages paid to men, 100 and disabled persons and Aboriginal Canadians remaining woefully underemployed. 101

These more intractable features of the sociopolitical landscape present obvious difficulties for the administrative agencies--be they human rights commissions or their employment or pay equity counterparts--that are expected to bring about change. A generation ago the conferral of powers upon human rights bodies to do battle against discrimination was endorsed by all mainstream political thought in Canada. The country had seen the drama of the civil rights movement in its neighbor to the south, where bigotry had been forced to retreat in the face of laws requiring equal treatment, and there was strong support across the political spectrum for the enactment of similar laws. But as horizons are expanded to include notions of systemic or indirect discrimination, it becomes more difficult to apportion responsibility for problems that are found to exist and to tailor effective remedies that enjoy broad public support.

To take one example, it is clear that a relatively small number of women are found in senior executive positions. The reasons for this are not, however, so obvious. Employer prejudice has doubtless played a part, but so also have long-term social patterns which have tended to take women away from the workforce during the periods of child-rearing, a time when employees in their twenties and thirties are often establishing themselves in the corporate hierarchy. Similarly, few Aboriginal Canadians are employed as bank managers. Again the causal chain has many links, one of which is certainly the fact that a relatively small percentage of Aboriginals proceed to post-secondary education. Other contributing factors would include native poverty, the remoteness of Aboriginal communities from major urban centers, and the cultural dislocation faced by Aboriginals who do move to the cities. The law can of course prod employers to do more in the way of hiring and developing appropriate candidates, but in itself this is not likely to alter the underlying dynamic.

In the United States the realization that long-term patterns of discrimination [End Page 568] did not lend themselves to resolution by way of individual complaints and the concomitant search for identifiable acts of discrimination led in the 1960s to the introduction by the courts of affirmative action programs. 102 These were viewed as providing a necessary springboard for historically disadvantaged groups. In Canada, similar sentiments led all parties in Parliament to support passage of the initial federal Employment Equity Act in 1986. In the United States, however, the earlier consensus which appeared to favor affirmative action has eroded and the concept seems to have few political friends. Judicial support has also weakened in recent years and the US Supreme Court has now declared that it will apply a standard of strict scrutiny to all programs that involve the use of racial classifications. 103

In Canada, too, the pendulum may be swinging in this direction. A 1995 provincial election in Ontario saw employment equity (or the "quota law" as it was called by the Conservative opposition) 104 emerge as an issue during the campaign and become a factor in the defeat of the provincial New Democratic Party government. At about the same time, the federal government was moving in the opposite direction by strengthening employment equity laws within its area of jurisdiction. In the face of understandable public ambivalence, not to say confusion, the political battle lines now appear to have been drawn on either side of the affirmative action divide. [End Page 569]

In some quarters, opposition to affirmative action or employment equity is undoubtedly self-serving, playing as it does upon the fears of those who have traditionally made up the majority of the labor force and feel threatened. But regardless of motives, the issues raised are significant and bring into question what is meant by equal opportunity. The United States and Canada are societies that have embraced the principle of egalitarianism: anyone can succeed if given a reasonable chance. The corollary, of course, is that privilege should not guarantee you a head start. Antidiscrimination laws fitted quite comfortably into this philosophy since they were aimed at eliminating unwarranted barriers. Affirmative action was initially seen as a limited exception to the rule which could be justified as a necessary antidote to historical injustices (and as a reassurance to black Americans during a time of social upheaval that the body politic was able to respond to their legitimate demands). But initiatives which were acceptable while there was high employment and expanding workforces are not an easy sell in today's era of downsizing and widespread layoffs.

The critics of employment equity are usually able to produce anecdotal evidence of highly qualified white males being denied a position in favor of a less qualified woman or member of a minority group. Those who continue to favor affirmative measures are for the moment less vocal, 105 faced as they are with the admittedly more complex task of convincing a skeptical audience that without some type of intervention, historic patterns of employment maldistribution are unlikely to change quickly and that the losers will be not only women, the disabled, or Aboriginal Canadians who cannot find work but society at large. Ironically, as the political climate becomes more hostile to what are seen as special measures for certain groups, many major employers are actively engaged in seeking out members of these groups in the realization that they constitute a valuable pool of potential recruits. 106[End Page 570]

VI. Conclusion

The present article has endeavored to convey a sense of the human rights milieu in Canada. If it has focused on some of the shortcomings of current laws and systems, this is not to minimize their achievements which, by any comparative standard, are remarkable. In most instances the victims of discrimination in Canada have effective remedies available to them, and public acceptance of nondiscrimination norms remains very high. But significant challenges undoubtedly lie ahead for human rights agencies, as their reach extends into more deep-seated patterns of inequality and they are seen to be assuming an increasingly redistributive rather than equality-seeking role. 107 There are already indications that the shift in focus from equal treatment to the less clear-cut concept of equal opportunity has served to politicize the human rights arena. We can anticipate continued public debate on this front, with the likelihood that issues of accountability and cost will assume a higher profile.

John Hucker is Secretary General, Canadian Human Rights Commission. He received his LL.B. at University of Wales, and his LL.M. from Yale. He is a Barrister and Solicitor in Ontario, Canada.

* This is a revised version of a paper originally delivered at a conference, "Making Rights Work," held at CardiffLawSchool, Wales, in April 1995. The opinions expressed herein are those of the author and should not be taken to represent the position of the Commission.

Notes

1. Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission: Report of the International Workshop on National Institutions for the Promotion and Protection of Human Rights - Paris, 7-9 October 1991, U.N. ESCOR, Comm'n on Hum. Rts., 48th Sess., Provisional Agenda Item 11(b), at 46, U.N. Doc. E/CN.4/1992/43 (1991) [hereinafter Paris Principles]. The Paris Principles were agreed to by human rights agencies from more than twenty countries participating at the International Workshop on National Institutions for the Promotion and Protection of Human Rights. Those present at the Paris session included: the Human Rights and Equal Opportunities Commission (Australia), Benin Commission on Human Rights, Canadian Human Rights Commission, Chilean Commission for Human Rights, United States Commission on Civil Rights, National Consultative Commission on Human Rights (France), National Commission on Human Rights (Mexico), New Zealand Human Rights Commission, Uganda Commission of Inquiry into Violations of Human Rights, Philippines Commission on Human Rights, Commission for Racial Equality (United Kingdom), and agencies from Senegal, Togo, Tunisia, Turkey, Brazil, Venezuela, and Yugoslavia. Id. at 1-2. The Paris Principles were subsequently accepted by the UN Commission on Human Rights as "Principles Relating to the Status of Commissions and Their Advisory Role." Id. at 46.

2. Id. ("A national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence.")

3. See Ed Ratushny, B.C.'s "Giant Step Backward" in Human Rights, Globe and Mail (Toronto), 19 Aug. 1983, at A7. See also W.W. Black, Human Rights in British Columbia: Equality Postponed, 1984-85 Can. Hum. Rts. Y.B. 219 (providing a more detailed account of the demise of the British Columbia Human Rights Commission and its replacement with a Human Rights Council, a body with significantly less authority).

4. The future of the Human Rights Commission in Alberta has been the subject of debate in the province for some time. Efforts to amend the provincial human rights law (known as the Individual's Rights Protection Act) to include protection for gays and lesbians have been the cause of at least part of the controversy and have undoubtedly prompted the special treatment critics. Two successive chief commissioners have been let go without having their terms extended and the provincial government has made it clear that it will not act upon recommendations to strengthen the commission. A flavor of the debate in the province can be gained from a recital of recent newspaper headlines. SeeAlberta's Strange Antipathy to Idea of Human Rights, Edmonton J., 12 Apr. 1995, at A12; Calgarians Plead for Human Rights Commission, Calgary Herald, 17 Feb. 1994, at B2; "Dump Rights Body," Tory Urges, Edmonton J., 1 Oct. 1993, at B15; Province Attempting to "Gut" Human Rights Commissions, Calgary Herald, 20 Dec. 1993, at A5; Rights Commissioner Critical of Government is Let Go, Edmonton J., 8 Sept. 1994, at A3.

The Ontario government will scrap the province's controversial employment equity law, replacing it with weaker legislation that stresses equal opportunities for disadvantaged persons. In his electoral campaign, the Conservative Leader did not threaten to dismantle the Ontario Human Rights Commission which he apparently viewed as dealing with legitimate issues of discrimination.

Id. In contrast to the federal sphere, where the Canadian Human Rights Commission's mandate includes pay equity and employment equity, Ontario had established separate agencies for the latter two programs. The Pay Equity Commission has, to date, survived the change in government.

7. The Paris Principles, in a section entitled "Composition and guarantees of independence and pluralism," declares that:

The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence.

Where the Commission fails to effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may request the Minister to appoint a board of inquiry and refer the subject-matter of the complaint to the board.

12. In Canada most human rights commissions enjoy a considerable degree of independence, though none is constitutionally entrenched. Their focus is upon domestic rather than international affairs. Even the Canadian Human Rights Commission, which comments on a wide array of issues in its annual reports to Parliament, does not generally pass judgment on its own government's performance under applicable international human rights instruments.

14. Can. Const. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), § 15(1). Section 15 of the Charter came into force on 17 April 1985. Id. § 32(2). The three year delay was intended to provide time for the federal and provincial governments to review their existing laws and make any needed changes to bring them into conformity with section 15.

15. See generallyHogg,supra note 13, at 793-827 (discussing the Canadian Charter of Rights and Freedoms).

17. Canadian Human Rights Act, R.S.C., ch. H-6, § 2 (1985) (Can.). The following text will focus largely on the CHRC, but human rights agencies in Canada share many common features and are guided by similar jurisprudence.

(1) For the purposes of this Act, race, national or ethnic origin, color, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination. (2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex.

29. See id. § 53. Under section 53(3) the maximum amount payable in respect of feelings or self-respect is fixed at $5,000. Id. § 53(3). There is no limit in the Act on the quantum of damages payable for lost wages, and amounts in excess of $100,000 have been awarded. See Thwaites v. Canada (Armed Forces) [1993], 19 Can. Hum. Rts. Rep. D/259 (Can. Hum. Rts. Trib.); aff'd., [1994] 3 F.C. 38, 21 Can. Hum. Rts. Rep. D/224 (T.D.).

30. See id. §§ 55-56. The Act provides for an appeal from a tribunal decision to a three-person review tribunal but it is now common for initial tribunal hearings to take place before a three-member panel, thereby obviating the review tribunal stage.

32. See generally Canadian Human Rights Act, R.S.C., ch. H-6, § 3 (1985) (Can.) (amended 1996) (prohibiting discrimination based on sexual orientation). This change to the law was sought by the Commission for several years. In the absence of such an amendment, two gay men successfully challenged the wording of section 3 as a denial of equal protection under section 15(1) of the Charter of Rights and Freedoms. Haig v. Canada [1992] 16 Can. Hum. Rts. Rep. D/226 (Ont. C.A.). The Ontario Court of Appeal upheld the challenge and ordered the CHRA to "be interpreted, applied and administered as though it contained 'sexual orientation' as a prohibited ground of discrimination in s. 3 of that Act." Id. at D/232. The government decided not to appeal this ruling and, until the recently passed amendment to the CHRA, the CHRC accepted sexual orientation complaints on the strength of the Haig decision. SeeCanadian Human Rights Commission, Annual Report 94, 111 (1994).

34. See, e.g., Canadian Human Rights Act § 15(a) ("It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be a bona fide occupational requirement."); id. § 15(g) (providing for a bona fide justification for the denial of a service).

The [Canadian Human Rights] Act itself applies to all federal government departments, agencies, Crown corporations and to business and industry under federal jurisdiction such as banks, airlines and railway companies in their employment policies, in matters of accommodation, as well as in their dealings with the public in the provision of the goods, services and facilities. In other words, the Commission is charged with the responsibility for settling disputes arising from situations within the "purview of matters coming within the legislative authority of the Parliament of Canada."

It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the public (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.

43. Canadian Human Rights Act § 7 ("It is a discriminatory practice, directly or indirectly, a) to refuse to employ or continue to employ any individual, or b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.").

It is a discriminatory practice for an employer, employee organization, or organization of employers (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.

73. Can. Const. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), § 15(2) ("Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.").

It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be or are based on or related to the race, national or ethnic origin, colour, religion, age, sex, marital status, family status or disability of members of that group, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.

89. SeeCanadian Human Rights Commission, Annual Report 34-35 (1989). The complaints named an array of government departments and large corporations. Some of the complaints have since been settled but the majority remain under investigation, where progress has been slow. Several employers refused to cooperate with the investigations on the basis that they were unwarranted; they initiated court proceedings arguing, among other things, that numbers alone could not support even a prima facie allegation of discrimination sufficient to justify the taking of a human rights complaint. Id.

102. See generallyDebating Affirmative Action: Race, Gender, Ethnicity and the Politics of Inclusion (Nicolaus Mills ed., 1994) (providing a collection of articles representing different points of view on affirmative action). Books and articles about affirmative action in the United States are legion.

"[A] free people whose institutions are founded on the doctrine of equality," should tolerate no retreat from the principle that government may treat people differently because of their race only for the most compelling reasons. Accordingly, we hold that all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.

Id. at 2113 (citation omitted) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). See also Justices, 5 to 4, Cast Doubts on U.S. Programs That Give Preferences Based on Race, N.Y. Times, 13 June 1995, at A1.

104. See, e.g., David Frum, Ontario Tories Did Not Misrepresent Employment Equity: It Is a Quota Law and Was Intended to Be a Quota Law, Fin. Post (Toronto), 17 June 1995, at 24. The term "quota" has become one of the nastier epithets in the affirmative action/employment equity debate. In Canada, no law or court decision has called for the imposition of quotas, in the sense of a mandatory percentage of hires being reserved for any group. The term "targets" is not, I would suggest, a synonym, particularly when courts or legislatures are clear (as they have been in Canada) that numbers prescribed for the hire of target groups are contingent on the availability of qualified candidates, and no sanction is imposed for failure to achieve the targets in question provided that reasonable efforts are made.

105. See Nicholas Lemann, Taking Affirmative Action Apart, N.Y. Times Mag., 11 June 1995, at 36; Michael Kinsley, The Spoils of Victimhood: The Case Against the Case Against Affirmative Action, New Yorker, 27 Mar. 1995, at 62.

In fact, affirmative action programs have never been more popular, more widespread or more mainstream than they are today. They are spreading, not shrinking. Their biggest boosters are powerful, middle-aged white men who live comfortably in Premier Mike Harris' ideological neighbourhood. Some places where affirmative action is flourishing are Canada's biggest police forces, the RCMP and the Metro Toronto Police; several big banks; and Hewlett-Packard, one of Canada's leading high tech companies . . . For these organizations, the business case for affirmative action is compelling. They need diversity in their work-forces, not to remedy past injustices but to be more successful.

Id.

107. See, e.g., Canadian Human Rights Commission, Annual Report 67-69 (1995) (providing an account of the CHRC's experience in dealing with equal pay cases). The tenor of the CHRC's assessment of progress can be seen by the subheading of the relevant section: "Waiting for Godot." Id. A telling illustration of the difficulties that can confront human rights agencies arises from the CHRC's experience with section 11 of the CHRA. Canadian Human Rights Act, R.S.C., ch. H-6, § 11 (1985) (Can.). This provision requires employers to pay men and women equally for work of equal value. Id. Section 11(2) states that "the criterion to be applied [in determining value] is a composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed." Id. § 11(2). The intention is to permit comparisons to be drawn between seemingly disparate occupations, for example secretaries (female dominated) and maintenance workers (largely male). The difficulties that have ensued in the application of section 11 are legion. Fact-finding and adjudication are far removed from the traditional antidiscrimination case and have become heavily dependent upon the technical evidence of expert witnesses. In light of the considerable costs which can be involved, conciliated settlements are rare in all but the smallest cases, and large employers have become adept at delaying final decisions. The waters are further muddied by the fact that unions sometimes use the filing of an equal pay complaint under section 11 of the CHRA as an adjunct to the collective bargaining process when it is tactically opportune to do so.